Legislative Bulletin: State Discontinues Serial COVID-19 Testing of Vaccinated Staff
June 11, 2021
Lawmakers Conclude 2021 Legislative Work
The State Legislature completed their 2021 legislative work just after four o’clock this morning when the Assembly adjourned at the call of the Speaker. However, as has been the case for the last several years, the Legislature’s adjournment is accompanied by the lingering possibility of a return for a “special session” prior to January 2022. In her closing remarks, State Senate Majority Leader Andrea Stewart-Cousins hinted that the 2021 work could continue, saying "we are proud of the historic progress we made this year. If ongoing discussions on any outstanding issues require action, we stand ready to come back when and if necessary."
The statement was likely made in response to the failed negotiations over a criminal justice reform, “Clean Slate” bill and an MTA bill. The negotiations fell apart on the last night of session, despite rumors that a deal had been reached Thursday afternoon. The “Clean Slate” bill would have sealed the records of those who have been incarcerated after a certain period of time. Advocates argue this would help these individuals secure employment and find housing, however, even some Democrats were hesitant about the legislation, saying the bill would have prevented background checks on special education teachers and those who work with people with disabilities. Numerous other bills were also left on the table including the New York Health Act, which would provide universal health care coverage, the Climate and Community Investment Act, and a bill that would allow restaurants to continue to serve alcohol-to-go.
While we can never fully rule-out an early return to Albany for a special session, it is likely that the Legislature will not be back until January 2022. For now, LeadingAge NY and our members can enjoy a sigh of relief as this was a particularly busy legislative session, with a focus on long-term care and aging services. We thank all of our members for your diligent participation in advocacy even while you were working tirelessly to serve your residents during a pandemic and public health emergency. Thank you for your efforts!
Your advocacy had a huge impact this year, helping us to successfully amend certain pieces of legislation and stopping other bills from passing altogether. Among the pieces of legislation that we successfully opposed this year is a bill that would have increased penalties for ACFs, a bill that would have further restricted the use of psychotropic medications, a bill restricting overtime for home care workers, a bill that would have required the Department of Health to publicly post the results of any inspection conducted in a nursing home within 30 days, and many others. While two nursing home staffing measures were unfortunately passed by the Legislature over the past few months, we were able to successfully advocate for the exclusion of CCRC’s from the “70/40” direct care spending requirement and avoided a proposed cap on administrative salaries. There were also several bills that we supported that passed the Legislature this year. Among these are a bill codifying the five-year affordable housing capital spending plan, the re-imagining long-term care taskforce and the Investing in Care Act.
2021 Advocacy Next Steps: We’re Not Done Yet!
This will likely be our last Legislative Bulletin for the time-being. However, LeadingAge NY will continue to watch for any legislative activity and will be working on a variety of grassroots advocacy initiatives as we prepare for next year. Importantly, LeadingAge NY will also be issuing a comprehensive legislative bill summary in the coming weeks. That memo will be sent directly to all members and will review all of the legislation we tracked this year and where those bills ended up at the close of session.
Over the coming months members are strongly encouraged to continue conversations with lawmakers and continue sharing your experiences and the challenges you face. As the State proceeds with its re-opening, members are encouraged to invite your lawmakers to visit your facility, whether it be for a tour or event. Now that things are beginning to “return to normal”, it is critical that we take this opportunity to help lawmakers better understand what providers have been through over the last 15+ months. It is also critical that we express to lawmakers our frustrations with the lack of support from the Legislature during the pandemic. While we understand the Legislature’s intent in many of the bills passed, there was a severe lack of grace and support offered to long-term care providers in a time when we needed it most. As always, LeadingAge NY staff would be happy to join you in any meeting or event with lawmakers.
Finally, during the summer and fall, LeadingAge NY will continue our work to build upon existing relationships with lawmakers and get further acquainted with the over 40 new legislators that were elected in 2020. It is also likely that we will return to organizing district meetings with key legislators and our LeadingAge NY members. Keep an eye out for an email from Government Relations Analyst, Sarah Daly, inviting you to join us for a district meeting near you.
That’s all for now. Thank you again for your time and diligent advocacy during this most challenging legislative session. We so appreciate you and the work that you do to serve New York’s seniors!
State Discontinues Serial COVID-19 Testing of Vaccinated Staff
Yesterday afternoon, the Department of Health issued two Dear Administrator Letters stating that serial COVID-19 testing is no longer required for fully vaccinated staff of nursing homes and adult care facilities (ACF). Both letters have been posted to the Health Commerce System and are available here and here.
In nursing homes, staff who are not fully vaccinated must continue to be tested twice weekly, and the Department will continue distributing Abbott BinaxNow COVID-19 antigen tests directly to nursing homes to help facilitate such testing. The nursing home DAL applies to adult day health care as well.
In ACFs, providers are required to test or arrange for the routine testing for COVID-19 of all personnel who have not been fully vaccinated, on a once-per-week basis.
Providers must continue to screen all staff, each resident, and all persons entering the facility, such as vendors, volunteers, and visitors, for signs and symptoms of COVID-19. Staff and residents with signs or symptoms of COVID-19, whether fully vaccinated or not, must receive a COVID-19 test immediately. Likewise, in an outbreak, nursing home staff and residents must be tested, regardless of vaccination status.
LeadingAge New York has been advocating for a reduction in staff testing for several months and we are very pleased to share this news with members. Thank you to all of our members that helped us advocate for this important change! We will be reviewing the updated guidance and answering questions on our Monday morning COVID-19 update call.
LeadingAge NY Op-Ed Featured in Times Union
“Not all New Yorkers have equal access to the reopening of society made possible by COVID-19 vaccination and declining infection rates. Despite having the highest vaccination rate in the state, people living in nursing homes are prohibited by state regulations from sharing a hug, an intimate meal, or a smile in their homes.” So begins the Times Union opinion piece, written by Liz Weingast of the New Jewish Home and Karen Lipson of LeadingAge New York. The piece continues by pointing out that the State has not adopted CMS or CDC guidelines which relax social restrictions for fully vaccinated nursing home residents. The reader is encouraged to imagine what it must be like for a vaccinated nursing home resident, watching as the world opens up, but still being required to eat alone, maintain six feet social distance, and wear a mask at all times except while eating.
The op-ed’s publication is well-timed, coming the day after the Governor announced that the rest of the State is well on its way to a full reopening. In his Monday press briefing, Governor Cuomo expressed the intent to relax “virtually all restrictions” once the state reaches a 70 percent vaccination rate. “We want to be at 70 percent”, said the Governor. “Then we can lift the capacity restriction, social distancing, the hygiene protocols, the health screenings, the potential tracing. Masks will only be required as recommended by the CDC.”
The Governor then specified that some institutional guidelines will remain. Large venues, schools, public transportation, hospitals, and nursing homes are among the list of settings that must continue to follow the State's guidelines until more New Yorkers are vaccinated. The Times Union op-ed argues that, at a minimum, it is time for the state to align its requirements with those of CMS/CDC. It is time for the State to allow vaccinated nursing home residents to eat together and participate in activities without masks, and it is time to stop depriving vaccinated residents of visitors when there are isolated cases of COVID-19 in their building.
Nursing Home Minimum Staffing Bill Delivered to Governor
The nursing home staff minimum hours legislation A.7119 (Gunther)/S.6346 (Rivera) was delivered to the Governor on Monday morning. The bill would require nursing homes to meet average daily minimum nurse and nurse aide staffing levels of 3.5 hours per resident day beginning in January 2022. Of these hours, 2.2 must be provided by a nurse aide (certified or aide trainee) and 1.1 must be provided by a nurse. Beginning in January 2023, 2.2 hours must be provided by a certified nurse aide and 1.1 by a nurse. DOH is required to establish a range of civil penalties for non-compliance, which may be imposed after April 1, 2022. When imposing penalties, DOH may consider mitigating factors, including the regional labor shortages and the existence of a public health emergency; however, the current pandemic emergency is not a qualifying mitigating factor.
LeadingAge New York strongly opposed this legislation and has sent a letter to the Governor urging that the bill be vetoed. Governor action on the bill is due by Friday, June 18th. Unfortunately, due to overwhelming public support the bill is likely to be signed into law.
Members interested in vocalizing our ongoing opposition to the bill can click here to send a letter to the Governor, urging him to veto A.7119 (Gunther)/S.6346 (Rivera).
Since the time of this bill’s passage, LeadingAge New York’s Board of Directors has approved pursuing litigation against the State to prevent the implementation of this staffing measure, as well as the “70/40” minimum staff spending ratio measure that was included in the final budget. Since the statutes do not take effect until January 2022, it may be some time before the suit is filed. In the interim, LeadingAge New York will continue to work with the Legislature and Executive Branch to push for additional funding and a more rational approach to nursing home oversight. We will also be providing some educational programs to support compliance with these measures in the event they are upheld.
Senate Sign-On Letter Urges DOH to Provide Financial Relief to ACF/AL
Earlier this week, Senate Health Chair Gustavo Rivera along with 16 of this Senate colleagues sent a letter to Department of Health Commissioner Howard Zucker, urging him to work with the Governor to designate a $75 million allocation from the American Rescue Act Plan’s Coronavirus State and Local Fiscal Recovery Fund for adult care facilities (ACFs) and assisted living (AL) across the State. The letter is part of a larger campaign urging lawmakers and state agencies to provide targeted covid relief funding to New York’s ACFs who have incurred hundreds of millions of dollars in expenses to procure gowns, gloves, masks, and other infection control supplies, to provide well-deserved hero pay to staff, to hire additional staff, and to provide weekly staff testing as mandated by DOH. Many of these providers were financially distressed even prior to the pandemic. Now, they need targeted financial support in order to remain viable.
LeadingAge New York is working with Argentum NY, Empire State Association of Assisted Living (ESAAL) and NYSCAL in our pursuit of a one-time request of $75 million to help preserve these essential ACFL/AL services for New York’s seniors and their families.
CLICK HERE to urge lawmakers to provide critical financial relief to New York’s ACFs, ALRs and ALPs!
Congress is Back: Tell Them We Need Support for Aging Infrastructure
Congress is back to work and negotiations on the proposed infrastructure bill and funding for key programs is happening now. We need aging services advocates like you to demand funding for safe and affordable housing, and home and community-based services for older adults.
Click here to urge Congress to fund our aging services infrastructure TODAY!
At a time when millions of older adults—a large proportion of them from marginalized communities—are facing hardships, its critical for Congress to take action by providing more support and resources. Tell your representatives in Congress that any infrastructure bill that goes forward must provide for safe and affordable housing designed specifically for older Americans, as well as home and community-based services!
LeadingAge & LeadingAge NY Coronavirus Resources
LeadingAge NY continues to closely follow all COVID-19 news and we are doing our best to keep members informed of updates, recommendations and guidelines from the Department of Health (DOH).
LeadingAge NY and LeadingAge National Member resources are linked below.
LeadingAge NY Coronavirus Resources
LeadingAge NY COVID-19 Weekly Update calls – Mondays at 11 a.m. Click here to join the call from your computer, android or apple device. Or you can join the call by dialing in: 877 853 5257 (Toll Free); Webinar ID: 852 964 255.
LeadingAge National Coronavirus Resources Page
LeadingAge National Pandemic Playbook
COVID-19 Group in the MyLeadingAge Member Community
Coronavirus Daily Member Update calls – Mondays, Wednesdays and Thursdays from 3:30-4:30 p.m. Past call recordings are available here and you can register here for future calls.
Contact: Ami Schnauber; 518.867.8854; aschnauber@leadingageny.org
Sarah Daly; 518.867.8845; sdaly@leadingageny.org